Every commercial dispute crosses an invisible line where there is an optimal point for settlement to occur.
The most astute commercial lawyers will be able to identify the point at which that invisible line is about to be crossed. There is no doubt that the invisible line is getting earlier and earlier in the dispute resolution process.
Pre-action protocols mean that legal arguments are articulated and exchanged earlier. Pleadings are formulated, documents and calculations of loss are disclosed earlier, expert evidence is sought, and views of merits are formed. At the same time, much of the commercial damage has already occurred. Costs are more front-loaded and mount quickly, commercial and working relationships have deteriorated, positions quickly become fixed and decisions are being driven as much by optics and momentum as by strategy.Continue reading







